LEGISLATIVE  DRAFTING 


BY 

THOMAS  I.  PARKINSON 


REPRINTED  FROM 

PUBLICATIONS  OF  THE 

ACADEMY  OF  POLITICAL  SCIENCE 
Vol.  Ill,  No.  2 


NEW  YORK 
PUBLISHED  BY  THE 
ACADEMY  OF  POLITICAL  SCIENCE 

IQI2 


LEGISLATIVE  DRAFTING 


BY 

THOMAS  I.  PARKINSON 


REPRINTED  FROM 

PUBLICATIONS  OF  THE 

ACADEMY  OF  POLITICAL  SCIENCE 
Vol.  Ill,  No.  2 


NEW  YORK 
PUBLISHED  BY  THE 
ACADEMY  OF  POLITICAL  SCIENCE 
1912 


LEGISLATIVE  DRAFTING1 


THOMAS  I.  PARKINSON 


Legislative  Drafting  Bureau 


HE  need  for  better  drafted  legislation  has  been  presented 


JL  frequently  and  forcibly  by  prominent  lawyers  and  polit¬ 
ical  scientists.  The  quantity  and  quality  of  our  statute 
law,  federal  and  state,  has  been  the  subject  of  vigorous  criticism 
for  many  years.  There  exists  a  well-founded  belief,  which 
found  frequent  expression  at  the  recent  meeting  of  the  Ameri¬ 
can  Bar  Association,  that  the  popular  discontent  arising  from 
the  tendency  of  our  courts  to  declare  unconstitutional  or  render 
ineffective  by  interpretation  legislation  enacted  to  remedy  ex¬ 
isting  social  and  industrial  evils  can  be  traced  directly  to  the  fact 
that  much  of  our  so-called  social  legislation  is  hastily  prepared, 
ill-considered,  and  thrown  on  the  statute  book  without  careful 
study  of  constitutional  limitations,  existing  statutes,  or  the 
phraseology  of  the  principles  and  rules  necessary  to  give  effect 
to  the  intentions  of  its  proponents. 

The  Federal  Employers’  Liability  Act  of  1906,  enacted  to 
apply  only  to  workmen  engaged  in  interstate  commerce,  was  so 
inaptly  worded  that  the  courts  held  that  it  included  as  well  em¬ 
ployes  engaged  in  intrastate  commerce,  and  for  this  reason  was 
unconstitutional.2  In  1908  the  same  act  was  re-enacted  in 
words  which  precisely  limited  its  effect  to  workmen  engaged  in 
interstate  commerce,  and  in  this  form  it  has  recently  been  held 
constitutional.3  Senator  Sutherland,  in  a  paper  before  the  bar 
association,4  expressed  the  opinion  that  the  decision  in  the  Ives 
case  might  have  been  different  if  the  New  York  Workmen’s 
Compensation  Law  5  had  been  more  carefully  drafted. 

1  Read  at  the  meeting  of  the  Academy  of  Political  Science,  October  26,  1912. 

2  See  Employers’  Liability  Cases,  207  U.  S.  463. 

8  See  Second  Employers’  Liability  Cases,  223  U.  S.  I. 

4  American  Bar  Association  Report ,  1912. 

5Ch.  674  Laws  of  iqio ;  declared  unconstitutional  in  Ives  v.  South  Buffalo  Rail¬ 
way  Co.,  201  N.  Y.  271. 


43 


'b'LZ.^  73 

oop.  I 

LEGISLATIVE  DRAFTING 

The  subject  of  Prof.  Reinsch’s  paper 1  this  afternoon  empha¬ 
sizes  another  need  for  accurate  drafting.  If  the  initiative  is  to 
be  made  a  successful  method  of  legislating,  means  must  be  pro¬ 
vided  for  the  scientific  preparation  of  initiated  measures.  Bills 
must  be  reasonably  within  the  comprehension  of  the  people  if 
they  are  to  be  enacted  or  rejected  intelligently.  Errors  and 
“  jokers  ”  are  less  likely  to  be  detected  by  the  whole  mass  of 
the  people  than  by  committees  of  the  legislature,  and,  if  de¬ 
tected,  are  more  dangerous  because  the  bills  cannot  be  amended 
in  the  course  of  discussion  and  before  final  action  as  they  could 
be  in  the  legislature. 

My  subject  is  not  the  need  for  or  the  desirability  of  better 
drafted  statutes,  but  the  means  by  which  they  may  be  had. 
The  scientific  preparation  of  a  statute  involves : 

1.  Knowledge  of  conditions  proposed  to  be  regulated,  and  de¬ 
termination  of  the  exact  evils  requiring  regulation. 

2.  Determination  of  the  nature  of  the  regulation  required 
and  the  precise  principles  or  rules  which  will  effect  such  reg¬ 
ulation. 

3.  Phraseology  of  the  new  principles  or  rules  and  of  neces¬ 
sary  administrative  provisions  in  apt  and  precise  language  which 
will  fit  them  into  existing  principles  of  constitutional  and  statute 
law  and  make  them  reasonably  clear  to  the  executive  and  judi¬ 
cial  officers  who  are  to  enforce  them. 

So-called  practical  legislators  are  fond  of  dividing  these  prob¬ 
lems  into  :  (1)  matters  of  substance,  which  are  for  the  legislator, 
not  for  the  drafter,  and  (2)  matters  of  form,  which  may  be  dele¬ 
gated  to  the  drafter.  The  distinction,  however,  is  of  little  value, 
for  changes  in  phraseology  frequently  result  in  changes  in  policy. 
Policies  determined  upon  in  conference  are  often  hard  to  recog¬ 
nize  when  they  come  from  the  pen  of  the  drafter.  No  such 
division  of  the  problems  of  preparing  legislation  is  possible. 
So-called  matters  of  substance  and  matters  of  form  go  hand  in 
hand,  and  if  the  problems  of  legislation  are  to  be  solved  wisely 
and  effectively,  the  legislator  and  the  expert  drafter  must  work 
together. 


lu  Initiative  and  Referendum,”  by  Prof.  Paul  S.  Reinscb,  University  of  Wisconsin. 
See  p.  203,  infra. 


1 44  EFFICIENT  GO VFRNMENT  [ Vol.  Ill 

Prof.  John  W.  Patton,  of  the  University  of  Pennsylvania  Law 
School,  says : 

Legislative  action,  however,  should  be  based  upon  demonstrated  need, 
careful  study  of  the  proposed  remedy  in  substance,  of  its  constitution¬ 
ality ,  of  the  meaning  of  every  word  used  in  a  proposed  act,  with  a  care¬ 
ful  examination  of  existing  decisions  as  well  as  statutes.  Knowledge 
of  law  as  well  as  of  the  English  language  is  required,  and  the  pen  of 
one  who  thinks  he  has  a  facility  for  legislative  expression  should  indeed 
“  make  haste  slowly.”  1 

In  workmen’s  compensation  legislation,  for  example,  the  leg¬ 
islator,  if  he  performs  his  legislative  duty  seriously,  must  first 
study  existing  employers’  liability  law,  and  the  evils,  if  any,  pro¬ 
duced  by  its  operation.  He  must  analyze  these  evils  and  con¬ 
sider  the  possible  methods  of  remedying  them,  and  for  this 
purpose  he  ought  to  know  and  appreciate  the  methods  by  which 
in  other  states  or  countries  similar  evils  have  been  remedied. 
Having  decided  that  the  compensation  system  offers  the  best 
means  of  doing  justice,  there  remain  for  his  decision  important 
questions  of  policy  involved  in  working  out  the  details  of  such 
a  scheme.  For  example,  shall  the  scheme  apply  in  all  employ¬ 
ments,  in  all  with  certain  exceptions,  or  in  certain  specified  em¬ 
ployments  selected  because  of  their  extra  hazard  or  otherwise? 
Are  all  injuries  in  the  course  of  employment  to  be  compensated, 
or  are  certain  injuries,  such  as  those  caused  by  an  employe’s  own 
deliberate  act,  to  be  excepted?  Upon  what  basis  shall  the  com¬ 
pensation  be  computed,  and  how  shall  the  computation  be  made, 
and  under  what  conditions  shall  it  be  paid?  What  shall  be  the 
procedure  to  determine  controverted  questions?  What,  if  any, 
administrative  organization  is  required  for  the  proper  enforce¬ 
ment  of  the  scheme?  Every  one  of  these  problems  involves 
the  determination  of  a  multitude  of  detailed  questions  of  policy 
before  the  precise  limits  of  the  rights  and  liabilities  created  by 
the  act  are  defined  in  such  manner  that  employer,  employe,  ad¬ 
ministrative  officer  and  the  court  may  know  when  and  to  what 
extent  the  legislature  intended  that  A,  an  employer,  should 


1  “  Festina  Lente”  Penna.  Law  Rev . ,  vol.  59,  p.  214. 


LEGISLATIVE  DRAFTING 


No.  2] 


145 


compensate  B,  his  employe,  in  case  the  latter  is  injured  in  the 
course  of  his  employment. 

The  foregoing  are  frequently  described  as  questions  of  policy 
with  which  the  drafter  should  have  nothing  to  do ;  they  are 
solely  for  the  legislator.  Theoretically,  this  is  true.  If  all 
these  questions  were  carefully  weighed  and  decided  by  the 
legislator  there  would  be  nothing  left  for  the  drafter  but  to  put 
the  legislative  decision  into  language.  Practically,  however, 
the  great  majority  of  these  questions  of  policy  do  not  occur  to 
the  legislator  until  the  drafter  in  the  detailed  statement  of  the 
legislative  intent  uncovers  the  numerous  instances  to  which  the 
legislative  intent  has  not  been  applied. 

Determination  of  these  questions  of  policy  by  no  means  com¬ 
pletes  the  legislative  task.  There  remain  questions  of  consti¬ 
tutionality  and  the  selection  of  devices,  such  as  the  so-called 
elective  scheme,  to  avoid  constitutional  restrictions ;  the  adjust¬ 
ment  of  the  statutory  scheme  decided  upon  to  the  existing 
statute  law  on  the  same  or  similar  subjects ;  and,  finally,  the  se¬ 
lection  of  the  language  which  will  carry  the  statutory  scheme 
into  a  statute  at  once  constitutional  and  effective  for  the  pur¬ 
poses  for  which  it  was  intended. 

Mere  phraseology  of  a  statute  is  itself  a  difficult  task  because 
of  the  imperfections  and  inadequacies  of  language,  its  unskil¬ 
ful  use  and  the  inability  of  the  human  mind  to  foresee  all 
the  contingencies  which  will  arise  in  the  daily  operation  of  the 
law.1  For  this  reason  it  is  sometimes  said  that  statutes  should 
declare  principles  and  not  go  into  detail. 

If  important  legislation  is  to  be  stated  effectively  in  general 
principles  it  can  be  done  only  after  very  careful  consideration 
by  the  drafters  of  all  questions  of  detail  and  the  selection 
of  such  general  language  as  is  suited  precisely  to  the  develop¬ 
ment  and  application  of  the  general  principle  to  the  numerous 
particular  instances  to  which  it  will  be  applied.  Otherwise,  the 
act  is  not  truly  general ;  it  is  simply  incomplete. 

There  is  an  impression  in  this  country  that  the  English 


‘Compare  remarks  of  F.  Vaughn  Hawkins,  Esq.,  reprinted  in  Thayer’s  Prelimin¬ 
ary  Treatise  on  Evidence ,  appendix  C,  p.  585. 


146 


EFFICIENT  GOVERNMENT 


[Vol.  Ill 


Workmen’s  Compensation  Act  is  a  good  example  of  a  well 
drafted  act  which  states  only  general  principles.  In  the  case  of 
Lysons  vs.  Knowles,1  Lord  Davey,  in  rendering  his  opinion  in 
the  House  of  Lords,  referred  to  the  act  of  1897  as  an  “  extra¬ 
ordinary  ill-drawn  act,”  and  said : 

The  difficulty  really  arises  from  this — that  the  draftsman  has  apparently 
not  worked  out  on  paper  into  legislative  language  the  scheme  which  he 
had  in  his  head,  and  it  looks  very  much  as  if  the  act  had  really  been 
framed  from  notes  of  legislative  intention  and  had  not  been  expanded 
into  the  proper  legislative  language.  Cases  which  have  arisen,  and 
cases  which  are  likely  to  arise,  appear  not  to  have  been  contemplated, 
but  apparently  were  supposed  to  be  covered  by  the  general  language 
used  in  the  act. 

The  English  Compensation  Act  of  1 897  was  expressed  in  1 2  ^ 
printed  pages;  the  amended  act  of  1906  required  24  pages, 
and  in  addition  there  are  now  more  than  150  pages  of  statutory 
rules  and  regulations 2  which  have  the  force  of  law.  Compen¬ 
sation,  under  the  act  of  1897,  was  based  on  “average  weekly 
earnings  ” 3  without  any  indication  of  the  method  of  computing 
such  earnings.  This  computation  gave  rise  to  so  many  diffi¬ 
culties  in  the  cases  which  arose  under  the  act  that  the  drafters 
of  the  amended  act  of  1906  used  nearly  400  additional  words  to 
explain  the  method  of  computing  average  earnings,4  a  total  of 
400  words  in  the  place  of  the  3  words  in  the  original  act.  The 
German  Insurance  Code  of  1911  represents  a  like  expansion  of 
the  original  laws.5 

The  tendency  to  couch  statutes  in  general  terms  and  to  leave 
details  of  their  administration  to  executive  discretion  simply 
shifts  to  executive  officers  the  burden  of  applying  the  general 
principle  to  a  particular  case.  This  puts  off  the  difficulty  but 

*84  L.  T.  R.  65,  vol.  3,  Workmen’s  Compensation  Cases  (Minton-Senhouse), 
p.  I  (1901). 

2  The  act  and  rules  are  reprinted  in  the  appendix  to  Ruegg’s  Employers ’  Liability 
and  Workmen' s  Compensation  (1910),  pp.  688-868. 

3  First  Schedule,  sec.  1,  b. 

4  First  Schedule,  section  1,  clauses  (1)  and  (2). 

5  See  translation  in  Bulletin  No.  96  of  United  States  Bureau  of  Labor. 


No.  2] 


LEGISLATIVE  DRAFTING 


147 


does  not  overcome  it;  for  if  the  law  is  to  be  even  reasonably 
clear,  executive  officers  must  draft  the  rules  and  regulations  and 
prescribe  the  schedules,  reports  and  records,  provision  for  which 
has  been  omitted  from  the  statute.  In  this  country,  however, 
because  of  the  general  impression  that  such  rules  and  regula¬ 
tions,  supplementing  general  statutes,  represent  an  unconstitu¬ 
tional  delegation  of  legislative  power,  it  usually  happens  that  the 
general  principle  is  applied  in  hit-or-miss  fashion  to  each  par¬ 
ticular  case  as  it  arises.  The  New  York  labor  law  requires 
“  good  and  sufficient  ventilation  ”  in  factories.1  No  specific 
rules  have  been  prescribed  and  the  act  is  practically  unen¬ 
forceable. 

Moreover,  when  a  general  statute  is  well  drawn,  the  men  who 
have  worked  out  its  provisions  and  selected  the  language  in 
which  to  state  them  are  in  a  better  position  to  state  the  specific 
rules  for  the  application  of  the  act  to  particular  instances  than 
are  administrative  and  judicial  officers  before  whom  it  comes  as 
a  totally  new  and  often  unconsidered  matter.  The  drafters  of 
a  workmen’s  compensation  act,  for  example,  if  they  have  done 
their  work  well,  ought  to  know  whether  free  house  rent  re¬ 
ceived  by  an  employe  is  to  be  included  in  the  computation  of 
his  wages  for  the  purpose  of  determining  his  compensation  in 
case  of  injury,  and  if  they  fail  to  state  in  their  act  whether  it  is 
to  be  included  or  not,  employers,  employes,  insurance  com¬ 
panies  and  courts  are  going  to  spend  a  great  deal  of  time  in 
attempting  to  discover  whether  the  legislature  intended  to 
include  or  exclude  this  item,  and  no  one  is  ever  going  to  know 
what  the  legislature  did  intend  until  some  individuals  have  car¬ 
ried  to  the  court  of  last  resort  a  case  involving  the  question, 
and  then  the  chances  are  even  that  the  court  will  guess  wrong 
and  that  the  intent  of  the  legislature  if  it  had  been  expressed 
would  have  been  directly  opposite.  For  example,  take  the 
Sherman  anti-trust  law,  the  meaning  of  which  was  in  doubt  for 
twenty  years.  There  are  many  people  who,  if  they  had  been 
placed  in  the  position  of  the  Supreme  Court,  would  probably 
have  guessed  differently  as  to  the  Congressional  intent. 


1New  York  Consolidated  Laws,  ch.  31,  sec.  86. 


148 


EFFICIENT  GOVERNMENT 


[Vol.  Ill 


My  point  is  not  that  statutes  should  provide  for  all  conceiv¬ 
able  circumstances.  I  do  not  expect  to  see  a  perfect  statute. 
As  was  said  by  Judge  Dean:  “Laws  seem  to  be  born  full- 
grown  about  as  often  as  men  are.”1  But  this  does  not  justify 
putting  on  to  the  statute  books  legislation  which  is  obviously  in¬ 
complete.  The  New  Jersey  Compensation  Act2  bases  compen¬ 
sation  on  wages  and  contains  no  definition  of  the  term  “wages.” 
The  slightest  consideration  of  the  operation  of  this  act  would 
disclose  to  its  drafters  the  absolute  certainty  that  within  thirty 
days  of  its  enactment  cases  would  arise  involving  the  question, 
“  How  are  wages  to  be  determined?  ” 

It  seems  foolish  to  omit  such  provisions  merely  to  avoid  what 
are  called  detailed  provisions.  Indeed,  it  is  generally  true  that 
lawyers  and  other  people  who  attempt  to  prepare  written  docu¬ 
ments  on  subjects  of  which  they  know  little  prefer  the  use  of 
general  language,  and  it  usually  happens  that  the  more  consid¬ 
eration  and  study  one  gives  to  the  preparation  of  a  written  doc¬ 
ument  the  less  general  language  is  found  in  it.  Explicitness  of 
language  is  in  direct  proportion  to  the  writer’s  knowledge  of  his 
subject  matter  and  its  problems. 

Commenting  on  the  detail  of  some  statutes,  Frederick  W. 
Lehmann,  in  his  President’s  address  before  the  American  Bar 
Association,3  cited  a  Kansas  act  requiring  for  each  bed  in  a 
public  inn  “  clean  sheets  of  sufficient  width  and  length  to  reach 
the  entire  width  and  length  of  the  bed,  and  with  the  upper  sheet 
to  be  of  sufficient  length  to  fold  back  over  the  bedding  at  the 
upper  end  or  head  of  the  bed,”  and  observed  that  the  drafter 
forgot  to  require  that  the  sheet  be  long  enough  for  tucking  in  at 
the  foot.  These  details  may  seem  petty,  but  suppose  that  the 
statute  had  provided  in  general  terms  for  sanitary  bed  cover¬ 
ings,  would  the  administrative  officers  have  carved  out  of  this  an 
enforceable  rule  which  would  have  effected  the  purposes  of  the 
act,  and  what  would  the  ordinary  judge  have  said  with  respect 
to  the  meaning  and  effect  of  this  act  had  it  come  before  his 

'In  Waters  v .  Wolf,  162  Pa.  167. 

2Ch.  95,  Laws  of  igri. 

3  American  Bar  Association  Report,  1909. 


No.  2] 


LEGISLATIVE  DRAFTING 


149 


court  for  application?  Would  he  not  have  quoted  the  rule  that 
statutes  in  derogation  of  the  common  law  must  be  construed 
strictly,  and  that  as  the  statute  said  nothing  about  the  length  or 
the  breadth  of  sheets  it  was  not  to  be  interpreted  as  interfering 
with  individual  liberty  more  than  its  language  absolutely  re¬ 
quired? 

Definitions  are  helpful  in  attaining  precision,  but  they  must 
be  skilfully  used.  The  New  Jersey  Compensation  Act  defines 
“  wilful  negligence  ”  as  “  deliberate  act  or  deliberate  failure  to 
act.”  1  Literally,  this  means  that  a  man  can  escape  the  charge 
of  negligence  only  by  careless  action  or  inaction. 

Blunders  in  legislative  language  are  varied.  They  run  from 
the  ridiculous  to  the  serious.  Congress,  for  example,  enacted : 
“  That  no  sponges  taken  from  (specified)  waters  shall  be 
landed,  delivered,  cured  or  offered  for  sale  at  any  port  or  place 
in  the  United  States  of  a  smaller  size  than  four  inches  in 
diameter.”2  How  many  of  our  ports  could  answer  the  descrip¬ 
tion  of  less  than  four  inches  in  diameter?  The  Illinois  Com¬ 
pensation  Act  for  disfigurement  of  an  employe,  grants  him  one- 
fourth  of  his  compensation  in  case  of  death.3  The  second 
draft  of  a  compensation  act,  prepared  by  the  Pennsylvania 
commission,  granted  compensation  to  widows  of  killed  work¬ 
men,  and  defined  widow  to  include  “  only  those  who  are  liv¬ 
ing  with  the  decedent  at  the  time  of  his  death.”  When  it 
was  pointed  out  that  this  suggestion  of  a  plurality  of  wives 
sounded  more  like  Utah  than  Pennsylvania,  the  commission  was 
much  impressed  with  the  necessity  for  a  change  in  the  wording, 
and  after  retiring  into  executive  session  produced  the  following, 
which  appears  in  its  latest  printed  draft :  The  term  widow  shall 
include  “  only  a  widow  living  with  the  decedent  at  the  time  of 
his  death.”  4  This  may  relieve  the  Pennsylvania  workman  from 
the  insinuation  of  Mormonism,  but  if  the  intent  is  to  give  com¬ 
pensation  to  the  decedent's  widow  only,  why  not  say :  “  shall 

1  Sec.  3,  par.  23. 

2U.  S.  Statutes  at  Large,  v.  34,  p.  313. 

3  Act  of  June  10,  1911,  sec.  5,  c. 

4  Industrial  Accidents  Commission  of  Pennsylvania,  4th  draft  of  compensation  act, 
art.  II,  sec.  6,  cl.  10. 


I  5  o  EFFICIENT  GO  VERNMENT  [Vol.  Ill 

include  only  the  decedent’s  wife,  living  with  him  at  the  time  of 
his  death?” 

Language  which  reads  smoothly  does  not  always  represent 
good  drafting.  As  a  member  of  Congress  put  it,  “  Like 
Browning’s  poetry  it  ’may  be  well  said  and  yet  not  say  any¬ 
thing”  to  the  ordinary  reader. 

The  framers  of  important  legislation  should  have  the  benefit 
of  the  experience  of  other  states  and  countries  in  the  same 
field.  They  should  know  the  legislation  of  other  states  and  its 
operation.  Mere  copying  of  foreign  legislation  will  not  suffice. 
Drafters  of  American  compensation  acts  have  repeatedly  copied 
from  the  English  act  the  words  “  injuries  arising  out  of  and  in 
the  course  of  employment.”  Apparently,  it  is  assumed  that  the 
meaning  of  these  words  has  been  fixed  by  the  English  courts 
and  is  well  understood.  Prof.  Francis  H.  Bohlen  recently 
demonstrated  1  that  this  phrase,  instead  of  having  a  definite  and 
fixed  meaning,  is  one  of  the  most  prolific  sources  of  doubt  and 
litigation  in  the  English  act.  Mere  copying  in  the  Nevada 
Compensation  Act  resulted  in  putting  into  the  very  first  section 
an  important  reference  to  “  the  preceding  section  of  this  act.”  2 

Legislation  is  constantly  enacted  in  ignorance  of  existing  laws. 
For  example,  on  February  14,  1903,  Congress  passed  an  act 
transferring  the  immigration  duties  of  the  Secretary  of  the 
Treasury  to  the  Secretary  of  Commerce  and  Labor.5  On  March 
3  of  the  same  year  Congress  passed  an  immigration  act,  in 
many  clauses  of  which  duties  were  imposed  on  the  Secretary  of 
the  Treasury A  joint  resolution  was  subsequently  necessary  to 
correct  this  blunder.5 

There  appears  in  a  congressional  appropriation  bill  an  appro¬ 
priation  for  publishing  the  laws  in  newspapers,  although  such 
publication  had  been  expressly  prohibited  four  or  five  times 
during  the  same  session.6 

1  Harvard  Law  Rev .,  vol.  25  (1912),  pp.  328,  401,  517. 

2  Laws  of  1 91 1 ,  ch.  183,  sec.  1. 

3  Statutes  at  Large ,  vol.  32,  p.  825. 

4 Ibid.,  vol.  32,  p.  1213. 

5 Ibid.,  vol.  33,  p.  591. 

6 Ibid. ,  vol.  18,  p.  349. 


No.  2] 


LEGISLATIVE  DRAFTING 


1 5 1 

In  1912  the  New  York  legislature  amended  a  section  of  the 
labor  law.  Later,  at  the  same  session,  the  same  section  was 
again  amended  without  reference  to  the  previous  amendment.1 
The  question  arises  whether  the  amendment  incorporated  in  the 
first  act  of  1912,  which  is  not  contained  in  the  second  amend¬ 
ment  of  1912,  is  or  is  not  part  of  the  labor  law  of  the  state? 

Another  and  frequent  type  of  bad  drafting  is  the  statement 
of  the  same  idea  in  different  words  in  the  same  act.  In  one  section 
of  the  New  Jersey  Compensation  Act  there  are  no  less  than  four 
different  methods  of  stating  the  same  computation  of  time.2 

The  obvious  suggestion  for  the  correction  of  many  of  our 
political  ills,  including  unscientific  statutes,  is  the  election  of 
better  men  to  the  legislature.  A  good  legislator,  however^ 
is  not  necessarily  a  good  drafter;  and  a  legislator  who  is  a  good 
drafter  is  so  busy  with  legislative  policies  on  a  host  of  subjects 
that  he  has  little  time  to  devote  to  the  wording  of  laws.  Mark 
Twain  said  that  a  man  who  attempts  to  study  German  has  not 
much  time  for  anything  else.  Drafting  statutes  is  much  like 
learning  German. 

John  Stuart  Mill  declared  :  “  There  is  hardly  any  kind  of  in¬ 
tellectual  work  which  so  much  needs  to  be  done,  not  only  by 
experienced  and  exercised  minds,  but  by  minds  trained  to  the 
task  through  long  and  laborious  study,  as  the  business  of  making 
laws.”  3  Our  legislators  are  elected  to  voice  for  brief  periods 
the  political  sentiment  of  their  communities  and  their  attention 
is  largely  confined  to  this  field  of  activity.  Having  in  mind  the 
statement  of  Mill,  it  is  apparent  that  the  selection  of  legislators 
by  the  elective  method  does  not  insure  the  selection  of  men  of 
“experienced”  minds  for  making  written  law;  that  the  fre¬ 
quency  of  election  fails  to  assure  any  opportunity  for  a  pro¬ 
longed  experience  in  lawmaking;  and  that  the  nature  of  the 
political  work  which  legislators  must  perform  to  gain  and  keep 
their  seats  precludes  them  from  and  unfits  them  for  “  long 
and  laborious  study.” 

1  Laws  of  191 2,  ch.  337  and  ch.  543. 

2 Laws  of  1911,  ch.  95,  sec.  II,  par.  15. 

3 Representative  Government ,  People’s  Edition,  1876,  p.  39. 


152 


EFFICIENT  GOVERNMENT 


[Vol.  Ill 


Great  Britain  has  solved  the  drafting  problem  partially  by 
creating  the  office  of  parliamentary  counsel,  by  whom  all 
government  bills  are  drafted.  Practical  legislators  and  lawyers 
in  this  country  have  an  indefinite  notion  that  the  creation  of  an 
expert  official  drafting  agency  would  in  some  way  interfere 
with  the  ordinary  functions  of  the  legislator.  The  real  function 
of  the  legislator  is  to  make  known  the  social  need  for  a  given 
rule  of  law  at  a  given  time.  It  does  not  necessarily  include  the 
phrasing  of  that  rule.  Originally,  the  English  Parliament  peti¬ 
tioned  the  king  for  the  enactment  of  laws ;  the  king  and  his 
counsellors,  if  the  petition  were  granted,  determined  the  phrase¬ 
ology  of  the  law.  Representative  legislators  elected  by  popular 
vote  may  voice  the  wishes  of  their  constituents  with  respect  to 
the  general  policy  which  shall  govern  the  community  on  any 
particular  subject;  but,  ordinarily,  they  are  not  sufficiently 
skilled  in  the  handling  of  the  English  language  as  an  instrument 
of  law-making,  and  in  the  knowledge  of  existing  constitutional 
and  statute  law,  to  determine  the  precise  phraseology  of  the 
rules  which  shall  make  effective  the  policies  so  determined 
upon. 

The  consequence  of  using  unprecise  language  in  a  statute  is  a 
loss  of  that  effective  control  over  the  policies  of  legislation 
which  the  legislature  is  empowered  constitutionally  to  exercise 
to  the  entire  exclusion  of  both  the  executive  and  judicial 
branches  of  the  government.  Moreover,  a  vast  amount  of  time 
and  painstaking  care  is  expended  by  administrative  officers, 
lawyers,  and  courts  in  the  determination  of  the  exact  meaning 
of  a  statute  or  of  its  words  or  phrases.  In  all  but  one  or  two  of 
the  cases  which  have  been  litigated  under  the  California  Com¬ 
pensation  Act  during  the  first  year  of  its  operation  “  the  issue 
was  upon  the  construction  of  the  act  and  not  the  fact  of  disability 
or  the  extent  of  the  injury.1 

The  conclusion  seems  inevitable  that  every  legislative  body 
ought  to  be  supplied  with  a  force  of  carefully-trained  lawyers 
whose  duty  it  shall  be  to  give  attention  to  these  problems  before 
a  statute  is  cast  in  its  final  form. 

1  Article  by  A.  J.  Pillsbury,  member  of  Industrial  Accident  Board  of  California,  in 
The  California  Outlook ,  Saturday,  Oct.  5,  1912. 


No.  2] 


LEGISLATIVE  DRAFTING 


53 


Definite  proposals  are  now  being  made  to  furnish  legislatures 
with  expert  drafting  assistance.  Several  states,  notably  Wis¬ 
consin  and  Pennsylvania,  have  drafting  and  legislative  refer¬ 
ence  bureaus  at  the  state  capitol.  At  the  last  session  Congress 
gave  serious  attention  to  a  bill  creating  a  similar  agency  at 
Washington.1  The  American  Bar  Association  has  just  created 
a  special  committee  on  the  drafting  of  legislation  to  study 
existing  agencies  for  the  rendering  of  technical  assistance  to 
legislators  in  the  preparation  of  their  laws,  and  to  report  its 
recommendations  to  the  annual  meeting  in  19 13. 2 

Legislative  reference  libraries  are  doing  excellent  work  so 
far  as  they  go,  but  the  drafting  end  of  their  work  has  not  been 
so  well  developed  as  the  collection  and  indexing  of  printed  ma¬ 
terials.  This  may  be  due  to  the  fact  that  the  lawyers  are 
slower  than  the  political  scientists  in  catching  up  with  modern 
tendencies. 

Another  device  of  which  frequent  use  is  now  being  made  is 
to  take  the  preparation  of  important  legislation  out  of  the 
hands  of  the  regular  legislator  and  entrust  it  to  a  legislative  com¬ 
mission.  This  plan  may  or  may  not  be  effective  for  good. 
The  commission,  like  many  other  governmental  agencies,  de¬ 
pends  for  its  usefulness  on  the  men  who  constitute  it,  the  time 
they  devote  to  their  work  and  the  men  to  whom  they  entrust 
the  actual  preparation  of  their  bills.  If  a  skilled  workman  were 
to  do  his  work  as  carelessly  and  with  as  many  blotches  appear¬ 
ing  over  the  whole  face  of  it  as  appear  in  some  of  the  compen¬ 
sation  acts  drafted  by  commissions,  his  employer  would  not 
hesitate  to  discharge  him  without  pay  or  send  him  back  to  do 
his  job  over  again. 

The  wise  solution  of  this  problem  of  drafting  American  stat¬ 
utes  will  do  much  to  relieve  administrative  officers  and  courts  of 

1  Congressional  Reference  Bureau :  Hearings  before  the  Committee  on  the 
Library,  House  of  Representatives,  Feb.  26th  and  27th,  1912.  (Published  in 
pamphlet  form  by  Government  Printing  Office.) 

2  The  members  of  this  committee  are :  William  Draper  Lewis,  Philadelphia,  Pa. , 
Chairman;  Samuel  Untermyer,  New  York,  N.  Y.;  Louis  D.  Brandeis,  Boston, 
Mass.;  Frederick  W.  Lehmann,  St.  Louis,  Mo.;  Henry  C.  Hall,  Colorado  Springs, 
Colo.;  Thomas  I.  Parkinson,  New  York,  N.  Y. ;  Ernst  Freund,  Chicago,  Ill. 


154 


EFFICIENT  GOVERNMENT 


vain  efforts  to  discover  legislative  intent  where  there  is  none,  or 
where  it  is  confused  in  a  mass  of  ill-chosen  words,  and  will  re¬ 
move  one  important  cause  of  the  discontent  which  has  been 
made  the  basis  for  the  proposal  of  popular  recall  of  judicial  de¬ 
cisions  affecting  the  constitutionality  of  state  legislation  or  the 
recall  of  judges  rendering  such  decisions. 

I  have  no  panacea  for  the  ills  of  legislation.  I  have  no  scheme 
to  suggest  for  the  production  of  well-drafted  statutes.  I  know 
of  no  device  or  organization  which  can  be  depended  upon  to 
provide  us  with  good  drafting.  Official  drafting  and  legislative 
reference  bureaus  are  not  of  themselves  sufficient;  machinery 
will  not  run  without  power.  In  the  last  analysis  the  problem  is 
to  secure  men  of  training  and  experience  who  will  devote  their 
professional  careers  to  the  scientific  formulation  and  develop¬ 
ment  of  our  written  laws.  In  the  words  of  E.  W.  Smith,  Esq., 
president  of  the  Pennsylvania  Bar  Association,  the  drafting  of  a 
statute  is  not  a  “  pastime  for  a  summer  afternoon.”  1  In  many 
ways  preparation  of  statutes,  because  of  the  increasing  quantity 
and  broad  effect  of  our  statute  law,  is  even  more  important  than 
the  judicial  function  which  operates  only  on  controversies  as 
they  arise  between  man  and  man.  Again,  Mr.  Smith  says: 
“  Legislation  is  necessarily  fragmentary,  unless  it  is  prepared  by 
skilful  lawyers,  familiar  with  the  subject,  who  are  ready  to  de¬ 
vote  much  time  and  thought  to  its  preparation.  But  it  is  foolish 
to  assume  that  all  lawyers  can  draft  statutes.  Such  work  re¬ 
quires  a  concentration  of  mind  and  of  expression  that  few  men 
have.”  Until  we  are  impressed  with  the  necessity  of  having  our 
statute  law  drafted  by  such  men,  and  until  we  find  the  men,  we 
shall  continue  to  find  in  our  session  laws  numerous  examples  of 
legislative  blunders,  some  of  them  amusing,  some  pathetic,  and 
unfortunately  many  of  them  serious. 


1  Pennsylvania  Bar  Association  Report ,  1911. 


~ 


3  0112  061906209 


THE  ACADEMY  OF  POLITICAL  SCIENCE 


IN  THE  CITY  OF  NEW  YORK 


President 

Samuel  McCune  Lindsay 
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Munroe  Smith 
Frank  A.  Vanderlip 


Paul  M.  Warburg 

Secretary 


Henry  Raymond  Mussey 
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George  A.  Plimpton 
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Emma  S.  Lake 


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Editor  of  the  Political  Science  Quarterly 


Munroe  Smith 


Editor  of  Proceedings  of  the  Academy 
Henry  Raymond  Mussey 


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